O80PCE and Department of Education and Training
(210902, 15 February 2010)
Section 7 of the FOI Act – document of an agency
Section 27(3) of the FOI Act – irrelevant matter
The applicant sought access to the following categories of documents held by the Department of Education and Training (Department) concerning the 2007 Career Change Program (Program):
· documents relating to the number of successful and unsuccessful applications (Category 1)
· documents concerning the assessment of applications (Category 2)
· documents concerning the reasons for refusing funding (Category 3)
· documents concerning the review of decisions to refuse funding (Category 4).
During the course of the review, the Department informed the OIC that the assessment, decision-making and review of grant recommendation processes of the Program were outsourced by the Department to Accelerated Pathways (AP), a private sector agency which provides services in a number of areas including career transition strategies. The Department and AP entered into a contract in 2006 regarding the work to be performed by AP in relation to the Program (Contract).
A number of issues were informally resolved during the course of this external review. The decision related to the issues which remained for determination.
Scope of the FOI Application
A preliminary matter concerned whether the Contract, a copy of which the applicant requested on external review, came within the scope of the FOI Application.
Acting Assistant Commissioner Jefferies noted that:
· under section 25(2)(b) of the FOI Act an applicant must, at the time of making the FOI application provide sufficient information concerning the documents sought to enable a responsible officer of an agency to identify the documents
· nonetheless, section 25 of the FOI Act only provides a broad indication of how an FOI application must be framed and it follows that an FOI application ought not be interpreted as narrowly and with the same degree of precision as a piece of legislation.
A/AC Jefferies was satisfied that:
· the terms of the FOI Application were specific and confined to the types of documents listed
· the Contract did not come within the terms of the FOI Application.
Section 27(3) of the FOI Act – Irrelevant matter
The Department refused access to parts of a report produced on 6 August 2007 by AP regarding the results of the Program (Report) [under section 27(3) of the FOI Act] on the basis that the information in those parts was not relevant to the FOI Application. The applicant sought review of this aspect of the Department’s decision.
A/AC Jefferies noted that although the relationship between the information and the terms of the FOI application does not have to be direct, it must be relevant, in the sense of having a bearing upon or being pertinent to the terms of the application.
A/AC Jefferies decided that the matter deleted from the Report was not relevant as it was not pertinent to nor did it have a bearing upon the FOI application.
Due to the precise terms of the FOI Application, A/AC Jefferies was satisfied that it was reasonable for the Department to consider that the applicant would accept the Report with the irrelevant matter deleted under section 27(4) of the FOI Act.
The Department’s decision in relation to the application of section 27(3) of the FOI Act was affirmed.
Section 7 of the FOI Act - Document of an agency
The applicant did not receive any documents falling within categories 2 to 4 of the FOI Application. The Department submitted that no documents were located in relation to categories 2 to 4 because any such documents would be in the possession of AP. The applicant accepted that due to the arrangement between the Department and AP, the Department did not have the relevant documents in its possession but sought review in relation to whether documents within the terms of the FOI Application and that may be held by AP, were documents the applicant was entitled to access under the FOI Act.
To determine this issue A/AC Jefferies considered the provisions of the Contract between the Department and AP, and applying the principles in Price and the Nominal Defendant (1999) 5 QAR 80, decided that the Contract:
· did not give the Department a present legal entitlement to take possession of any documents held by AP that may fall within categories 2 to 4 of the FOI Application
· any documents that may fall under categories 2 to 4:
o would be held by AP
o are not under the control of the Department
o are not documents of an agency.
As such, A/AC Jefferies decided that any documents that would fall under categories 2 to 4 of the FOI Application were not documents of the Department for the purposes of section 7 of the FOI Act.
